Mishpatim 5762-2002

“‘An Eye for an Eye’ in Jewish Law”

by Rabbi Ephraim Z. Buchwald

In this coming week’s parasha, parashat Mishpatim, the Torah introduces the fundamental legal system of Israel. Both, criminal and civil laws are recorded, and in great number. In fact, this week’s parasha is the fifth most numerous parasha of laws in our Torah, containing 53 of the 613 mitzvot of the Torah.

Because of the antiquity of the Torah, we would expect to find many ancient laws that appear to be out of step with contemporary values. In the past, I have tried to explain many of these seemingly inexplicable laws and show that they are indeed relevant to, and often ahead of, contemporary values. But, few passages in the Torah raise more eyebrows and engender greater consternation than the law of retaliation expressed in Exodus 21:24-25: “Ah’yin tach’at ah’yin, shain tachat shain, yad tachat yad, regel tachat rah’gel. K’viah tachat k’viah, peh’tzah tachat poh’tzah, chaburah tachat chaburah.” An eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot. Burning for burning, wound for wound, a strike for a strike. These ancient laws are known to Biblical scholars as “Lex Talionus,” which means the “Laws of Retaliation.”

Aside from the seeming cruelty and inhumanity of these laws, the striking parallel between the language of the Torah and the language found in other ancient near Eastern documents, such as the Code of Hammurabi, often result in all these laws being lumped together as one ancient chulent, to be regarded as a stew of primitiveness and barbarism. An additional reason for the negativity is that in the Middle Ages, Christian courts and Christian kings actually invoked the statements of the “Old Testament” in order to justify cruelly retributive practices, which were introduced at that time into many European countries.

Despite these strongly worded Torah passages, no case of physical retaliation is ever recorded in the Bible, the only exception being of course, for murder, where the perpetrator is expected to lose his life for taking another. The Talmud in Bava Kama 83a & b and the Mechilta prove, through cogent analysis, that these expressions can only mean monetary compensation–for an eye, for a hand, for a tooth. Furthermore, there is no record of any Jewish court ever blinding or inflicting physical injury in return for injury inflicted on a victim.

On the other hand, the laws of the ancient Near East clearly indicate that physical retaliation was common practice in those societies. Some examples from the law Code of Hammurabi (c.1792-1750 BCE): If a son has struck his father, they shall cut off his hand. If a citizen has destroyed the eye of another citizen they shall destroy his eye. If he has broken the bone of a citizen, his bone shall they break.

In the Code of Hammurabi we also find the law of a son for son, and daughter for a daughter. Consequently, if a builder causes the death of the son or daughter of the owner, then not the builder, but his son or daughter is put to death. What we see in effect here is that according to ancient Near Eastern laws, human beings are regarded as property, as chattel. If I killed my neighbor’s son, my neighbor has the right to come and kill my son. If I raped my neighbor’s daughter, my neighbor has the right to rape my daughter or take my daughter as a concubine. If I killed my neighbor’s slave, I could give my neighbor 18 camels and we’d be even. In other words, I, the perpetrator, must suffer the same loss as the victim.

Almost 400 years after Hammurabi, the Torah came along and revolutionized the entire legal philosophy of punishment that had been practiced until then. The Torah declares (Deuteronomy 24:6): Eesh b’chet’oh yoo’mat,” Every person shall be put to death for his own sin. A father may not be put to death for the sin of the child, neither shall the child be put to death for the sin of the father. In effect, the Torah transformed the underpinnings of the ancient penal system, by declaring that people are responsible for their own acts. A third innocent party may not be punished for someone else’s crime. Furthermore, firmly dismissing the notion that human beings are chattel, the Torah declares that human beings are created in G-d’s image and are G-d’s property. Therefore, when a human life is taken, according to the Torah a crime has not been committed against the owner, the father or the mother, but rather, a crime has been committed against G-d.

The entire Western world has adopted this Jewish point of view, with one significant alteration. Rather than assuming Judaism’s theocratic tone, the law has been secularized and G-d has been eliminated. Therefore, homicide cases are always declared as the State vs. the accused, e.g. the State of New York vs. John Doe, or the Queen of England vs. John Smith. These statements declare that a crime has been committed against society–the contemporary substitute for G-d.

If “An eye for an eye” does not literally mean an eye, but rather monetary compensation for an eye, why then does the Torah use this phraseology of “Ah’yin tachat ah’yin”? Maimonides and other commentators explain that this phrase is used because in G-d’s eyes the perpetrator truly deserves to lose his own eye. A perpetrator cannot achieve forgiveness by merely paying for the damages. In fact, the perpetrator is expected to beg his victim to forgive him.

Other commentators explain further that the particular expression, “An eye for an eye” comes to underscore a revolutionary concept affirmed by the Torah. While the perpetrator may deserve to lose an eye, and perhaps, considering the cruelty involved, deserve to lose even more than an eye, the maximum that can be exacted in punishment is the value of an eye. So, in effect the Torah informs us to have no illusions, that no matter how vicious the circumstances of the injury, the maximum punishment may only be up to the value of an eye, and not one iota beyond that point.

Enigmatic phrases often have much to teach us–especially enigmatic phrases from the Torah.